Episode 2 of The ConstitutionCast: Learning More about the Constitution Online

About the Episode:
There is currently a great deal of interest both domestically and abroad about the U.S. Constitution, in general, and specific contemporary constitutional issues, in particular. Nicholas and I are both in the business of helping individuals put constitutional issues into historical context. When we talk to people both here in the United States and abroad, the most common question we receive is not “hey, is this constitutional?” but rather “where can I find information about the constitutionality of a particular governmental action?” There is a real hunger for high quality, vetted, accurate information on issues of constitutional import. Most people would like to try to use this information in order to draw their own conclusions about the wisdom and constitutionality of governmental actions. But it’s not always easy for folks to know where to turn for good information. Informed debate is reasoned debate and reasoned debate tends to be much more civil – something that is needed in this era of deep political polarization.
We thought that during this week’s episode it would be constructive to spotlight some of the outstanding online resources that are available to people of all ages interested in learning more about major constitutional issues. One issue that has attracted more global and domestic interest than any other in recent weeks is President Donald Trump’s Executive Order related to temporarily stopping people from certain Muslim majority countries from entering the United States. Using this Executive Order, we’d like to guide you through some steps you can take on your own to learn more about its constitutionality.

The 214th Anniversary of Marbury v. Madison

On February 24, 1803, the United States Supreme Court decided the case of Marbury v. Madison and confirmed the legal principle of judicial review – the ability of courts to limit congressional power by declaring legislation unconstitutional.

The portion of the Court’s opinion, written by Chief Justice John Marshall, confirming the principle of judicial review reads –

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and is, consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. (Emphasis added)

 

To learn more about the Court’s decision and the lasting impact of Marbury’s confirmation of the principle of judicial review, check out these resources –

(1) CSPAN Landmark Cases Discussion with Akhil Reed Amar and Cliff Sloan

(2) Gordon S. Wood, The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less

(3) William Treanor, Judicial Review before Marbury

(4) Saikrishna B. Prakasht and John C. Yoo, The Origins of Judicial Review

 

230 Years Ago Today, the Confederation Congress Calls for a Constitutional Convention

On February 21, 1787, the Confederation Congress resolved –

Whereas there is provision in the Articles of Confederation & perpetual Union for making alterations therein by the Assent of a Congress of the United States and of the legislatures of the several States; And whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the States and particularly the State of New York by express instructions to their delegates in Congress have suggested a convention for the purposes expressed in the following resolution and such Convention appearing to be the most probable mean of establishing in these states a firm national government Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.
This resolution was based on a request made by commissioners of the states of Virginia, Delaware, Pennsylvania, New Jersey and New York, who had assembled at Annapolis, MD, to discuss interstate commerce. While that was the original topic of discussion, the commissioners soon realized that issues of interstate trade could not be disentangled from the inadequacy of the Articles of Confederation to address the current political and economic turbulence.
The Commissioners from the aforementioned states included –
New York
ALEXANDER HAMILTON
EGBERT BENSON

New Jersey
ABRAHAM CLARK
WILLIAM C. HOUSTON
JAMES SCHUARMAN

Pennsylvania
TENCH COXE

Delaware
GEORGE READ
JOHN DICKINSON
RICHARD BASSETT

Virginia
EDMUND RANDOLPH
JAMES MADISON, Junior
SAINT GEORGE TUCKER

At the end of their meeting, they concluded by calling for a convention to meet in Philadelphia “on the second Monday of May next . . . to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.” They transmitted the following to Congress –

That there are important defects in the system of the Federal Government is acknowledged by the Acts of all those States, which have concurred in the present Meeting; That the defects, upon a closer examination, may be found greater and more numerous, than even these acts imply, is at least so far probably, from the embarrassments which characterize the present State of our national affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode, which will unite the Sentiments and Councils of all the States. In the choice of the mode, your Commissioners are of opinion, that a Convention of Deputies from the different States, for the special and sole purpose of entering into this investigation, and digesting a plan for supplying such defects as may be discovered to exist, will be entitled to a preference from considerations, which will occur without being particularized.

Your Commissioners decline an enumeration of those national circumstances on which their opinion respecting the propriety of a future Convention, with more enlarged powers, is founded; as it would be a useless intrusion of facts and observations, most of which have been frequently the subject of public discussion, and none of which can have escaped the penetration of those to whom they would in this instance be addressed. They are, however, of a nature so serious, as, in the view of your Commissioners, to render the situation of the United States delicate and critical, calling for an exertion of the untied virtue and wisdom of all the members of the Confederacy.

Under this impression, Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction that it may essentially tend to advance the interests of the union if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavors to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.

 

On This Day in 1942, FDR signs Executive Order 9066, authorizing the forcible relocation of Japanese Americans following the attack on Pearl Harbor

In the climate of fear surrounding World War II, President Franklin D. Roosevelt authorized the internment of tens of thousands of American citizens of Japanese ancestry and resident aliens from Japan. His Executive Order 9066 (February 19, 1942) read –

Executive Order No. 9066

The President

Executive Order

Authorizing the Secretary of War to Prescribe Military Areas

Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104);

Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.

I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.

I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.

This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder.

Franklin D. Roosevelt

The White House,

February 19, 1942.

This policy was challenged by Fred Korematsu in Korematsu v. United States. In Korematsu, the United States Supreme Court said of Executive Order 9066 and Civilian Exclusion Order No. 34 of the U.S. Army –

We uphold the exclusion order as of the time it was made and when the petitioner violated it.Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 547; Block v. Hirsh, 256 U.S. 135, 155. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kawato, 317 U.S. 69, 73. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

The Court’s decision in Korematsu has been generally condemned by historians and most other Americans. The decision has never been explicitly overturned by the Supreme Court. A report issued by Congress in 1983, however, declared that the decision had been “overruled by the court of history.” The Civil Liberties Act of 1988 contained a formal apology, as well as provisions for monetary reparations, for the Japanese Americans interned during WWII.

Do you love the Constitution?

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“Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.” – James Wilson

And, yet, countless reports and studies confirm that American citizens of all ages lack a basic understanding of our nation’s history and form of government.

If you love the Constitution and believe more citizens ought to know about the text and history of the document, please consider making a contribution to support ConSource’s work this Valentine’s Day.

We work 365 days a year to connect citizens of all ages to the U.S. Constitution and its history. Every dollar donated to ConSource either supports one of our many free educational programs or one of our important digital collections of historical documents.

It has, perhaps, never been more important to invest in our public understanding of the Constitution and its history. We hope you will consider supporting our efforts!

Happy Valentine’s Day!

The 50th Anniversary of the Ratification of the 25th Amendment

On February 10, 1967, the 25th Amendment to the United States Constitution was ratified. The Amendment was passed by Congress on July 6, 1965, in order to clarify what happens upon the death, removal, or resignation of a President or Vice-President, and how the Presidency is temporarily filled if the President becomes disabled or otherwise cannot fulfill his responsibilities.

Article II of the U.S. Constitution provided –

In Case of the Removal of the President from Office, or of his Death, Resignation or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly until the Disability be removed, or a President shall be elected.

Section 3 of the 20th Amendment, ratified in 1933, clarified one detail of presidential succession procedure by declaring that, if a President-elect dies before being inaugurated, the Vice President-elect becomes President-elect and is subsequently inaugurated.

Prior to the ratification of the 25th Amendment, it was standard practice that the Vice President became President upon the death of the President, as had happened eight times in our nation’s history. Presumably, the Vice President would also become President upon the removal of the President from office. There was also the issue of how to deal with the death or resignation of a Vice President. Throughout U.S. history 7 vice presidents had died in office and one resigned, and there had been no person to step up to fill the vacancy.

The most pressing question, on which scholars and experts at the time were divided, was whether the Vice President would become acting President when the President became temporarily unable to serve, and whether the Vice President could resume his office upon recovering his ability. Questions abound about who was to determine the existence of an inability, how was the matter to be handled in the President wished to continue in his/her role, what was to happen if the President recovered.

In the aftermath of the assassination of the of President John F. Kennedy and with the Vice Presidency vacant and a President (LBJ) who had previously had a heart attack, Congress decided to pass the 25th Amendment, which provides –

Amendment XXV

Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

 

The 222nd Anniversary of the 11th Amendment: A Constitutional Amendment Overturning a Supreme Court Decision

The 11th Amendment to the United States Constitution, changing a portion of Article III, Section 2, was ratified on February 7, 1795. The amendment reads –

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Article III, Section 2 states –

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—[between a State and Citizens of another State;-]8 between citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States [and between a State, or the Citizens thereof;—and foreign States, Citizens or Subjects.]9

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The 11th Amendment was designed to overturn the U.S. Supreme Court’s decision in Chisholm v. Georgia.

The facts of that case were as follows

In 1777, the Executive Council of Georgia authorized the purchase of needed supplies from a South Carolina businessman. After receiving the supplies, Georgia did not deliver payments as promised. After the merchant’s death, the executor of his estate, Alexander Chisholm, took the case to court in an attempt to collect from the state. Georgia maintained that it was a sovereign state not subject to the authority of the federal courts.

The issue confronted by the Court was whether the state of Georgia was subject to the jurisdiction of the Supreme Court and the federal government? The importance of the case was laid out by Justice James Wilson in his opinion –

This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this— “do the people of the United States form a Nation?”

The Court held in a 4-to-1 decision that “the people of the United States” intended to bind the states by the legislative, executive, and judicial powers of the national government. Further, the Court held that supreme or sovereign power was retained by citizens themselves, not by the “artificial person” of the State of Georgia. In the Court’s view, the Constitution made clear that controversies between individual states and citizens of other states were under the jurisdiction of federal courts. State conduct was, therefore, subject to judicial review.

At the time Chisholm was decided in 1793, there were a number of other suits against other states still pending. One case was Vassall v. Massachusetts, in which a British subject (Vassall) sued the states of Massachusetts for violating the Treaty of Peace when the state confiscated his property. Senator Caleb Strong of Massachusetts was alarmed by the Supreme Court’s opinion and quickly proposed language to Congress that would become the 11th Amendment to U.S. Constitution. The Amendment was passed by Congress on March 4, 1794, and was ratified on February 7, 1795.

To understand how the Supreme Court has interpreted the 11th Amendment, check out this explainer from the National Constitution Center

In some early interpretations, the Amendment was not read expansively. In Cohens v. Virginia (1821), the Court rejected a challenge to its jurisdiction to review a state court decision in a criminal case, in which Virginia prosecuted two brothers from Virginia for the crime of selling lottery tickets. The Cohens defended on the ground that a federal statute authorized the lottery and ticket sales. The Court first concluded “that, as the [C]onstitution originally stood, the appellate jurisdiction of this Court, in all cases arising under the [C]onstitution, laws, or treaties of the United States, was not arrested by the circumstance that a State was a party.” Turning to the Eleventh Amendment, the Court noted that a defendant who seeks appellate review of an adverse decision “does not commence or prosecute a suit against the State.” Moreover, the Court said, the Amendment would not in any event apply because the Cohens were citizens of Virginia, and thus their appeal against Virginia was not “by a citizen of another State, or by a citizen or subject of any foreign State.”

In its 1890 decision in Hans v. Louisiana, the Supreme Court interpreted the Eleventh Amendment immunity broadly to prohibit suits against a state not only by citizens of another state, but also by a state’s own citizens, and in cases arising under federal law. It essentially disavowed the contrary language in Cohens. The HansCourt placed weight on the speed with which the Amendment was adopted, and suggested that Chisholmhad erred in upholding jurisdiction under the original Constitution, which could not have contemplated individual suits against states.

As Congress in the twentieth century increasingly enacted regulatory legislation that applied to the states, questions arose about whether federal statutes could be enforced against states through suits in federal court. InFitzpatrick v. Bitzer (1976), the Court held that Congress could subject states to suit in federal court through laws enacted under its Fourteenth Amendment power to redress discriminatory state action. In Pennsylvania v. Union Gas Co. (1989), five Justices voted to allow Congress to subject states to suit under the Superfund Act, enacted under Congress’ Article I power to regulate interstate commerce. There was no majority opinion, however.

The Court quickly reversed itself on this issue. In Seminole Tribe v. Florida (1996), the Court issued a majority opinion for five Justices holding that Congress lacked power to subject states to suit when it legislated under its Article I Commerce Clause powers. Since Seminole Tribe, the Court has reaffirmed this holding and for the most part has limited Congress’s ability to subject states to suit in federal court, unless Congress acts pursuant to its powers to enforce the Fourteenth Amendment (in part on the theory that it was adopted after the Eleventh Amendment), or for some bankruptcy issues.

The Supreme Court’s decisions afford states immunities from suit that appear to go beyond the terms of the Eleventh Amendment. For example, as noted, suits by individuals against their own state have been barred; suits by foreign states are also barred. The Court has further held that states enjoy immunity in state court from suits based on federal law. Alden v. Maine (1999). Moreover, states may “consent” to suits that appear to be barred by the Amendment. These decisions suggest that the Court may regard state sovereign immunity—the legal privilege by which the state government cannot be sued, at least in its own courts, without its consent–as an underlying constitutional “postulate,”—an assumption reflected but not fully captured by the words of the Eleventh Amendment.

At least three other approaches have attracted support. First, some argue that the Eleventh Amendment should be applied according to a simple literal reading of its text to bar suits against states by out-of-state citizens, and foreign citizens or subjects (but only by these parties), even if their claim is based on federal law. Others have argued that the Eleventh Amendment’s language tracks a “party-based” head of jurisdiction, and thus should not be understood to prevent federal courts from hearing suits against a state by citizens of another state if the claim arises under federal law. Still a third view regards the Eleventh Amendment as addressed to the courts, prohibiting them from construing Article III’s jurisdictional grants to abrogate a state’s common law immunity but allowing Congress to override such immunity if it clearly expresses its intent to subject states to suit. (The accompanying commentaries present further scholarly views.)

While the states continue to enjoy broad sovereign immunity from suit, the Supreme Court does allow suits against state officers in certain circumstances, thus mitigating the effect of sovereign immunity. In particular, the Court does not read the Amendment to bar suits against state officers that seek court orders to prevent future violations of federal law. Moreover, suits by otherstates, and suits by the United States to enforce federal laws, are also permitted. The Eleventh Amendment is thus an important part, but only a part, of a web of constitutional doctrines that shape the nature of judicial remedies against states and their officials for alleged violations of law.